Influenced
I moved from the world of field archaeology to that of the law in the early 1980s, a time when I believe that if I had mentioned cultural heritage law as a career goal, very few—especially in the United States—would have understood what I meant. It was still a few years before publication of John Henry Merryman’s articles “Two Ways of Thinking about the Elgin Marbles” (Reference Merryman1985) and “Two Ways of Thinking about Cultural Property” (Reference Merryman1986). Some of the Holocaust-looted art recovery cases predated this period, such as Menzel v. List, 267 N.Y.S.2d 804 (Sup. Ct. N.Y. Cnty 1966), and Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982). It was several years before the iconic cases involving ancient artworks and archaeological artifacts, such as the recovery of the Byzantine mosaics stolen from the Kanakaria Church in northern Cyprus, Autocephalous Greek-Orthodox Church of Cyprus and the Republic of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp. 1374, aff'd, 917 F.2d 278 (7th Cir. 1990), and the US government civil forfeiture of the Sicilian phiale acquired by Michael Steinhardt, United States v. An Antique Platter of Gold, known as a Gold Phiale Mesomphalos, c. 400 B.C., 991 F. Supp. 222 (S.D.N.Y. 1997), aff'd, 184 F.3d 131 (2d Cir. 1999).
The Phiale case represents a turning point in the recovery and restitution of illegally taken cultural and archaeological artifacts. Before that, most litigation was brought by private plaintiffs and foreign governments acting as private plaintiffs; since the Phiale case, the US government has taken an expanding role, ushering in the “second generation” of recovery cases (Gerstenblith Reference Gerstenblith2015). However, the turning point in both awareness and legal developments arguably occurred a few years after the Phiale case, with a trifecta of events that indicated just how serious the problem of antiquities trafficking is: the prosecution and conviction of the prominent New York antiquities dealer, Fredrick Schultz, United States v. Schultz, 333 F.3d 393 (2d Cir. 2003); the thefts from the Iraq Museum in Baghdad in April 2003 during the US-led invasion, followed by large-scale looting of archaeological sites in southern Iraq; and the prosecution in Italy of the Getty curator Marion True. From that point, the looting and theft of cultural objects became a matter of continuing public awareness, with almost constant media attention, which has influenced developments in both law and policy.
Are we at a turning point in the operation of the illegal market in looted and stolen artifacts? Will market participants, especially museums, now do due diligence and refuse to accept objects without assured legitimate background and reliable documentation? Unfortunately, we have been at a “turning point” before, and it is too soon to know whether the current decade of the 2020s represents true change. We do not know what market participants are doing: what they are acquiring, what they are turning away, and what the origin is of many of the objects they do acquire. The market, including the activities of many major museums, is still largely shrouded in secrecy and, without a substantial increase in transparency, it is impossible for us to assess whether we have, in fact, reached a turning point in market behavior.
Although preceded by the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and First Protocol, which in turn were based on the earlier Hague Conventions of 1899 and 1907, the 1970s to the early 2000s saw the development of the most significant cultural-heritage-related international conventions: the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1972 World Heritage Convention Concerning Protection of the World Cultural and Natural Heritage; the 1995 Unidroit Convention on Stolen and Illegally Exported Cultural Objects; the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict; the 2001 Convention on Protection of the Underwater Cultural Heritage; the 2003 Convention for the Safeguarding of Intangible Cultural Heritage; and the 2005 Convention on Safeguarding the Diversity of Cultural Expressions. The 1972 Convention and the 2003 Convention have now achieved virtually universal ratification, and many of the other conventions have achieved a significant number, but clearly more work remains to broaden their reach and effectiveness. These conventions did not arise out of thin air. We owe enormous debts of gratitude to the legal scholars, scholars of other disciplines, and activist-scholars, many of whom were intimately involved in the creation, drafting, and acceptance of these conventions, including Lyndel Prott, Patrick O'Keefe, Francesco Francioni, and Norman Palmer.
The field was also led by archaeologists and anthropologists who turned in the 1990s to the problems of the market and its impact on site preservation. These leaders include Christopher Chippindale and David Gill (Reference Chippindale and Gill2000), Ricardo Elia, Neil Brodie, Colin Renfrew, and Clemency Coggins who, although not lawyers, synthesized the fields of law, archaeology, and statistical market analysis. Brodie was one of the pioneers of market-based research to document the market in antiquities—a first step toward formulating policy and solutions for the problem of destruction of archaeological sites (Brodie Reference Brodie1999). A conference organized by Dr. Brodie was the first to bring together leaders with diverse academic and practical skills to address the threat posed by the market (Brodie et al. Reference Brodie, Doole and Renfrew2001). Dr. Elia’s article (Reference Elia, Brodie, Doole and Renfrew2001) in that conference publication established a methodology that paired fieldwork documentation of site looting with market research. Dr. Coggins’s article “United States Cultural Property Legislation: Observations of a Combatant” (Reference Coggins1998) may be viewed as the challenge that one generation sets for the next. These are the giants upon whose shoulders the contemporary incarnation of this field was constructed.
Unfortunately, despite these many successes and changes over the past 40 years, much remains to be done. I will try to outline these and my ideas for what needs to change and how these changes can be accomplished. Although there are many aspects of this research and activism that need attention in the future, I will address here four distinct issue areas: trafficking of undocumented archaeological artifacts, protection of cultural heritage during armed conflict, the role and rights of minority ethnic and religious communities—often Indigenous groups, and the role of restitution in achieving reparative justice for appropriations during colonialism and imperialism.
Influence: Future Challenges
Trafficking of Cultural Materials and Preserving Archaeological Heritage
It has now long been recognized that the art market and the funds realized from it provide a primary incentive to the looting of archaeological sites (Kersel Reference Kersel, Brodie, Kersel and Tubb2006). When an archaeological site is looted, the associated context of both saleable and unsaleable objects, faunal and floral remains, architectural features, sometimes human remains, and other remains is destroyed. Information that can be derived from a site is lost, and our ability to understand our past is permanently diminished. The detrimental effects of the looting of the Iraq Museum may be contrasted with the effects caused by the looting of archaeological sites that followed quickly during the 2003 conflict.
Many, although not all, of the objects looted from the Iraq Museum were known, documented, photographed, and studied. Their theft was a great loss, but this did not extensively affect our understanding of the past. The looting of sites in southern Iraq, however, significantly diminished that understanding. As just one example, the looting of cuneiform tablets, which appeared on the international market after 2003, has left us with tablets with no origin. Many come from identified but unlocated sites, such as Irisagrig (Brodie Reference Brodie2020; Gerstenblith Reference Gerstenblith, Hashemi and Shelley2022). In the future, perhaps these sites will be located and properly excavated; texts will be found in situ, and more will be learned. But for now, the origin of these texts remains a mystery.
All nations, including the wealthiest, lack sufficient capacity to adequately protect sites. Decreasing the demand for illegally obtained cultural objects should decrease the supply and economic incentive for looting. These measures constitute an essential means of protecting sites and need to be done at the destination end of the market chain. The destination market countries, which are largely responsible for the market incentive to loot and steal artifacts, must do more. In 2023, close to 59% of the art market was located in the United States (42%) and the United Kingdom (17%; McAndrew Reference McAndrew2024). Although we do not have specific market statistics for archaeological artifacts, one may assume that the smaller antiquities market (in terms of value) tracks that of the overall art market. The tax system of the United States, in particular, provides an additional incentive to the US private collector, who can pay a higher price, with the chance of earning it back through tax benefits if an object is later donated to a museum.
The positive message is that both the United States and the United Kingdom now recognize the doctrine of foreign state ownership of archaeological artifacts. Under this doctrine, artifacts located in a country of origin are owned by that country pursuant to vesting legislation. Artifacts removed without permission are considered stolen property in a market country, including the United States, the United Kingdom, Germany, and France (Gerstenblith Reference Gerstenblith, Fabiani, Burmon and Hufnagel2024:91). This doctrine thereby denies title to the looter and subsequent purchasers, while providing an avenue for criminal prosecution when the correct circumstances allow.
Yet, when we look at what the US and the UK are otherwise doing to stem the flow of archaeological artifacts that are likely to have been looted recently, we find them both seriously derelict—to a large extent, a result of how each country implements the 1970 UNESCO Convention. Most ratifying market countries adopted reciprocal import restrictions, prohibiting the import of any illegally exported cultural materials (Gerstenblith Reference Gerstenblith, Francioni and Vrdoljak2020:219). This approach is broad and proactive, obviating the need to enact new legislation or adopt specific measures with respect to each state party.
When it ratified the 1970 UNESCO Convention in 2002, the United Kingdom took the position that it did not need to enact implementing legislation, although it enacted a criminal statute soon thereafter. This legislation has the potential to be very effective because it prohibits trading in “tainted cultural objects,” defined as both objects that are stolen in the traditional sense of theft and artifacts that are illegally excavated (Dealing in Cultural Objects [Offences] Act 2003, Chapter 27, Sections 1 and 2). The latter provision is at least as broad as and perhaps broader than other methods used to restrict trade in undocumented archaeological artifacts. Although the legal structure is clearly in place, the United Kingdom has not been proactive in using this legislation and intercepting such objects. UK law enforcement has gradually adopted a broader approach, seizing objects that are improperly declared upon import, such as a sculpture looted from the site of Cyrene in Libya (HM Revenue & Customs v. Al Qassas, unpublished, Westminster Magistrates Court [1 Sept. 2015]). But the United Kingdom can do more.
Unfortunately, the United States takes a minimalist approach to the 1970 UNESCO Convention. The US implementation of the 1970 Convention requires a supplemental bilateral agreement with another state party to prevent the import of illegally exported cultural objects. These import restrictions apply only to archaeological and ethnological materials, as defined by the US implementing legislation. As of mid-2024, there are 146 States Parties to the Convention (excluding the United States), but the United States has agreements with only 30 countries, with pending requests from an additional four.
The process for achieving a bilateral agreement is slow and onerous for the requesting state party (see Davis and Arose [Reference Tess and Helena2025] for further details on the process). It is increasingly burdensome to the State Department’s Cultural Heritage Center, which is charged with overseeing these agreements. Although the US implementing legislation—the Convention on Cultural Property Implementation Act (CCPIA)—was adopted in 1983, more than half of the current agreements were adopted in only the past seven years (beginning late 2017), with an initial spurt primarily among Mediterranean rim countries. In particular, because these agreements must be renewed every five years and there is a chance that an agreement will not be renewed (as occurred with Canada and Nicaragua), these agreements do not serve their deterrent purpose as effectively as they should.
In an implicit recognition that the United States is unable to respond quickly in emergency situations, Congress enacted special legislation in the cases of Iraq (the Emergency Protection for Iraqi Cultural Antiquities Act of 2004) and Syria (the Protect and Preserve International Cultural Property Act of 2016) to waive some of the requirements and allow import restrictions to be imposed on an emergency basis. The latter legislation represented an additional step forward in that Congress gave its sense that the State Department should establish the Cultural Heritage Coordinating Committee (CHCC) to coordinate the efforts of all federal agencies and other entities that work internationally to protect cultural heritage. Although Congress has still not formally established the CHCC, the CHCC has proved to be at least moderately successful in carrying out its coordination responsibilities.
It is a challenge to assess the effectiveness of these bilateral agreements achieved under the 1970 UNESCO Convention and the CCPIA. For the most part, such an assessment is an attempt to discern the unknowable or to argue from negative evidence because we do not know what would have happened in the absence of an agreement—how many sites destroyed, how much knowledge lost, and how many objects looted for sale on the market, possibly in the United States. Obtaining these answers will require substantial research with innovative means of assessment.
What we do know is that thousands of artifacts have been intercepted by US law enforcement and returned to their countries of origin, whether as a result of the import restrictions or through other legal mechanisms. US law enforcement returned to Iraq alone approximately 12,000 artifacts in 2021, including the Gilgamesh “Dream” Tablet, that were imported in violation of import restrictions under the CCPIA, that were subject to Iraq’s national ownership, and that were improperly declared upon import (Arraf Reference Arraf2021; Gerstenblith Reference Gerstenblith, Hashemi and Shelley2022). However, in many cases of restitution, we do not know the exact legal basis that the US government is utilizing.
We also know that the import restrictions are sufficiently effective that members of the trade, particularly the numismatic coin lobby, have gone to considerable effort and (presumably) expense to oppose the CCPIA bilateral agreements. The Ancient Coin Collectors Guild engaged in extensive litigation against the federal government over the question of whether ancient coins could be included on the Designated Lists of the bilateral agreements and therefore subjected to import restriction. The courts held that ancient coins were includable on the Designated Lists. Furthermore, recognizing that the purpose of import restrictions is to prevent the import of archaeological objects whose origin is unknown and thereby to preserve archaeological heritage, the courts held that the burden would fall on the importer to establish that such coins were importable by fitting into one of the exceptions in the CCPIA (Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 [4th Cir. 2012]; United States v. Ancient Coin Collectors Guild, 899 F.3d 295 [4th Cir. 2018]).
The impact of the bilateral agreements may be either direct or indirect, increasing the complexity of determining the effectiveness of the agreements on their own. As mentioned above, an import may violate more than one of the legal provisions that regulate the import of cultural objects. We therefore need to view these legal mechanisms (CCPIA import restrictions, national ownership, and improper declaration) as interrelated rather than as independent means of seizure and forfeiture. An importer may be more likely to improperly declare the country of origin so as to evade the scrutiny that would come with declaring a country with which the United States has a bilateral agreement or that is known to have an ownership law (see Gerstenblith Reference Gerstenblith, Hashemi and Shelley2022). Given that improper declaration constitutes a separate basis for seizure of objects, the only explanation for why an importer would improperly declare the country of origin is that declaration of the proper country of origin would alert customs agents to detain objects.
For the countries with which the United States has a bilateral agreement, such an agreement is the single most effective means of preventing the import of objects illegally exported after the date the agreement went into effect. The challenge for the future is to create a more workable system, which may require amending legislation. It may be possible to find creative means of reducing the burdens on both the United States and the other state party while maximizing this effective means of interception. But the goal should be to bring US implementation of the 1970 Convention into line with what many other market states, such as Germany, do in imposing reciprocal restrictions that simply prohibit the import of cultural materials illegally exported from another 1970 Convention state party.
The inadequacy of the international framework to discourage the trafficking of cultural—especially archaeological—objects was demonstrated by the need for the UN Security Council to adopt three resolutions addressing the issue: Resolutions 1483, 2199, and 2347. The first two called on all UN member states to adopt import restrictions for cultural materials taken from Iraq and Syria (respectively). The third reflects the growing awareness of the link between thefts and looting, especially of archaeological sites, and threats to global security through funding of terrorism, armed conflict, and other criminal activity (Kersel and Gerstenblith Reference Kersel, Gerstenblith, Heritage and Policy2024). Resolution 2347 sets out measures that UN Member States should take to prevent trafficking, especially that linked to terrorism and funding of armed conflict. However, these resolutions are reactive, whereas Resolutions 1483 and 2199 are restricted to addressing the situation in only two countries. This means the world community is not prepared for the next crises, such as those in Gaza, Sudan, and Ukraine. When taken together, these three resolutions constitute a striking acknowledgment by the international community that the existing treaty regime is inadequate to prevent trade in cultural objects illegally removed from areas of armed conflict. Given the haphazard and inconsistent nature of such resolutions and implementing legislation, this approach fails in the essential function of deterring the market through dampening demand, which, in turn, would reduce the incentive to supply the market. International conventions exist to provide a relatively uniform mechanism for carrying out stated objectives upon which the international community has reached consensus. Reliance on Security Council Resolutions to fulfill this function and to fill the lacunae that the current international treaty regime has created is doomed to fail in achieving optimal effectiveness within the broader scope of the goal of protecting cultural heritage.
Cultural Heritage during Armed Conflict
For more than a hundred years, international humanitarian law (IHL) has prohibited the intentional targeting of cultural property (defined to include immovable historic structures, movable cultural objects, repositories for movable cultural objects, and historic districts) during armed conflict, with—according to some legal instruments—a waiver in cases of imperative military necessity (Gerstenblith Reference Gerstenblith2023:143–159). Similarly, IHL has prohibited the misappropriation, vandalism, and theft of movable cultural objects. These principles are embodied in the 1899 and 1907 Hague Conventions and the 1954 Hague Convention and its two protocols. Yet, in conflict after conflict, we have seen flagrant violation of these basic rules that are universally binding on all states through either treaty accession and ratification or customary international law.
Accountability
The greatest extent of destruction and theft of cultural property occurred during the Second World War. It demonstrated the continuing purpose for the destruction of cultural heritage in the attempt to not only eliminate people through their physical destruction but also eradicate the cultural and historical memory of such groups. Yet, although leaders of Nazi Germany were prosecuted for war crimes, including the large-scale theft of civilian objects, they were not prosecuted for their actions against cultural property.
Efforts to return cultural objects to their proper owners continue today, primarily through private litigation in the United States and art commissions established in many European countries in response to the 1995 Washington Conference principles. The Washington Conference principles provide flexibility in the assessment of the merits of restitution claims before the European art commissions, which are often able to direct national museums and institutions to return artworks taken during the war. The United States, however, rejected the establishment of such a commission, largely because the US government cannot direct museums, as private institutions, to return objects from their collections. In 2016, Congress enacted the Holocaust Expropriated Art Recovery Act (HEAR Act) to fulfill some of the obligations under the Washington Conference principles. In this act, Congress preempted state statutes of limitation to facilitate restitution but did not preempt the equitable defense of laches. As a result, the effectiveness of the HEAR Act has been very limited and plaintiffs’ claims are still often barred through passage of time.
In the past 35 years alone, we have witnessed the shelling of the World Heritage Site of Dubrovnik and the destruction of the Bridge at Mostar and the National and University Library of Bosnia and Herzegovina in Sarajevo during the Balkan conflict. We have also seen destruction and looting in Iraq and Syria during the 2003 war, followed by the destruction wrought by the Islamic State of Iraq and the Levant in the early 2010s. Finally, today we see what appears to be the intentional targeting of cultural, religious, and historic structures and thefts of cultural objects perpetrated by Russia in Ukraine and, likely, Israel in Gaza.
Yet there have been virtually no instances in which these perpetrators have been held accountable. The International Criminal Tribunal for the former Yugoslavia (ICTY) prosecuted and convicted members of the Serbian naval forces for war crimes, including the shelling of Dubrovnik. Croatian military leaders were convicted for the destruction of the Bridge at Mostar in 1993. However, this conviction was reversed on appeal, as discussed below. The International Criminal Court (ICC) was created under the Rome Statute in 1998 as a permanent court to hear criminal cases involving genocide, crimes against humanity, war crimes, and the crime of aggression. There has been only one prosecution in which targeting and destruction of cultural property was pursued as the sole charge: the case of Prosecutor v. Ahmad Al Faqi Al Mahdi (International Criminal Court 2022), who was prosecuted for the destruction of several shrines and a mosque in Timbuktu. Al Mahdi pled guilty, so the ICC never ruled on the details of the prosecutor’s charge. (Gerstenblith Reference Gerstenblith2023:171–173; Meskell Reference Meskell, Strecker and Powderly2023; Vrdoljak Reference Vrdoljak, Strecker and Powderly2023). Today, Russia is attacking cultural property in Ukraine with impunity, even though Ukraine has accepted the ICC’s jurisdiction, which subjects Russian actors to possible criminal liability.
This brief history raises two significant questions concerning accountability for the destruction of cultural heritage. One question concerns the shortcomings of the Rome Statute and some indications of how its provisions may be interpreted. Second is the question of whether cultural property, despite its own independent treaty regime, in fact receives any greater protection than other forms of civilian (that is, nonmilitary) property receive through the Geneva Conventions and the Rome Statute.
The Rome Statute and ICC
The Rome Statute itself includes two restrictive flaws concerning cultural property. The first is the narrow definition given to what is protected: an enumerated list of types of immovable properties—“buildings dedicated to religion, education, art, science or charitable purposes [and] historic monuments” (Articles 8 (b)((ix) and 8 (e)(iv)). The terms “cultural property” and “cultural heritage” are not used. This language is a throwback to the language of the 1907 Hague Convention (Article 27) and is much narrower than the definition of cultural property in the 1954 Hague Convention (Article 1). This means that the Rome Statute leaves large swaths of what is considered immovable cultural property unprotected, including, for example, archaeological sites. It also may leave unprotected the physical remains of societies that did not construct buildings and historic monuments.
Second, the Rome Statute gives no specific protection to movable cultural objects, unless perhaps indirectly if the objects are located in a building dedicated to art or science—such as a museum—and if that protection is limited to physical damage, excluding theft and looting. This omission makes the Rome Statute far narrower in its protections than even the 1907 Hague Convention, which prohibits “seizure of, destruction or wilful [sic] damage done to . . . works of art and science” (Article 56). On the other hand, the Rome Statute protects general civilian property by prohibiting “pillaging a town or place” (Articles 8 (b)((xvi) and 8 (e)(v)). Although the pillaging of a museum would fall under the prohibition of pillaging a place, this indicates that movable cultural property (whether cultural objects in a museum or an archaeological site) receives no greater protection than that afforded in general to civilian (that is, nonmilitary) objects. This question of the relative protection given to cultural as opposed to more general civilian property is discussed further in the next section.
In addition to this narrow and outmoded terminology, possible interpretation of the Rome Statute may pose further obstacles to achieving accountability. The preamble to the 1954 Hague Convention and its definition of protected cultural property arguably contain inherent contradictions. The preamble states, “Damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all [hu]mankind, since each people makes its contribution to the culture of the world” (1954 Hague Convention, Preamble, Para. 2). The definition of cultural property includes “moveable or immovable property of great importance to the cultural heritage of every people” (1954 Hague Convention, Article 1(a)). These definitions raise the question of whether protected cultural property must have universal significance or whether by being important to a “people,” the cultural property thereby gains universal significance and protected status. This question of to whom cultural property must have significance in order to qualify for protection has been debated but not resolved (Starrenburg Reference Starrenburg, Strecker and Powderly2023). However, this ambiguity has not, so far, posed a serious problem.
The Rome Statute makes no explicit distinction in the level of protection to be accorded to categories of cultural property. However, in Prosecutor v. Bosco Ntaganda, the ICC’s Trial Chamber suggested that whether cultural property has “special status,” which the Trial Chamber failed to define, may be relevant in assessing how the term “attack” in Article 8, particularly in Articles 8(2)(b)(ix) and 8(2)(e)(iv), should be interpreted (ICC-01/04-02/06-2359 [8 July 2019], paragraph 1136, note 3147). The Appeals Chamber rejected the prosecutor’s appeal of the defendants’ acquittal of this charge, based on interpretation of the term “attack,” and did not rely on or refer to this statement of the Trial Chamber (ICC-01/04-02/06-2666 A A2 [30 March 2021], paragraphs 1163–1169. The possible implication in the Trial Chamber’s decision that protected cultural objects must have a special status or that different levels of protection will be accorded based on the perceived status of the cultural property may incorporate a requirement of universality, although the Rome Statute specifically avoids the qualifying language of the 1954 Hague Convention. If the Trial Chamber’s interpretation were to be accepted, this would be an unfortunate privileging of universality over the values of the state and especially of the local community.
The policy of the Office of the Prosecutor on Cultural Heritage acknowledges that the significance of a cultural object plays a role in a determining the gravity of an offense but should not play a role in determining whether an offense has been committed. Although significance may depend on the “function of a protected object within the context of its society, significance or gravity ‘is not always solely limited to . . . anthropocentric concerns’” (Office of the Prosecutor of the International Criminal Court 2021, paragraph 47; emphasis in original). Consequently, a determination of the seriousness of an offense is not necessarily based on the value of the cultural property given to it by present society.
The ICC is limited in the crimes that it can pursue to those enumerated in the Rome Statute. However, the policy statement of the Office of the Prosecutor indicates a willingness of the Office to take a broader perspective of cultural heritage destruction, albeit within the narrow statutory confines. This is one of the few examples where I would urge consideration of an amendment to an international legal instrument to update the language of the Rome Statute to bring it in line with customary international law—which includes the 1954 Hague Convention—and contemporary understanding of cultural property and cultural heritage.
Extent of Protection for Cultural Heritage in Armed Conflict
The second question—whether cultural property receives greater protection than civilian property—is prompted by the disposition of the ICTY prosecution for the destruction of the Mostar Bridge during the Balkan conflict. The bridge was a culturally and historically significant structure spanning the Neretva River in Bosnia-Herzegovina. Designed by a student of the famed Ottoman architect, Mimar Sinan, it was completed in 1566. The bridge played a role in support of the Bosniak forces, as a means of bringing supplies and transporting troops across the river (Prosecutor v. Prlic et al., Judgment, 29 May 2013, Vol. II, http://www.icty.org/x/cases/prlic/tjug/en/130529-2.pdf, at 348–349). Croatian forces destroyed the bridge in late 1993. Six of the Croatian commanders were indicted for a series of crimes against humanity, grave breaches of the Geneva Conventions, and violations of the laws or customs of war, including destruction or willful damage to institutions dedicated to religion or education.
The statute of the ICTY incorporated the principles of the 1954 Hague Convention as customary international law, including a waiver for targeting of cultural property when required by imperative military necessity. On the other hand, Article 51 of Additional Protocol I to the 1949 Geneva Conventions and the 1999 Second Protocol to the Hague Convention, which was not finalized at the time of the bridge’s destruction, incorporates the principle of proportionality: any anticipated harm must be proportionate to the expected concrete military advantage. However, the provisions of the Geneva Convention Protocols are subordinate to the Hague Convention; therefore, a state that has ratified both instruments is bound by the Hague Convention with respect to cultural property and not by the Geneva Convention Protocols, which apply generally to civilian populations and infrastructure.
The Trial Chamber made a specific finding that the bridge was a military target at the time of the attack but that its destruction was disproportionate, isolated the Muslim civilian population, and had a serious psychological impact on the Muslim community, thereby exacerbating the humanitarian situation (Id. Vol. III, at 459–460, http://www.icty.org/x/cases/prlic/tjug/en/130529-3.pdf; id. Vol. II, at 372). The impact on the Muslim civilian population was “indisputable and substantial” and was “disproportionate to the concrete and direct military advantage expected by the destruction of the Old Bridge” (Id. Vol. III, at 460).
Although destruction of the bridge as cultural property was excused by military necessity under the Hague Convention, the destruction of the bridge as a civilian object was not excused because such an object is subject to a proportionality requirement. Therefore, despite the bridge’s historical and cultural significance, the crime committed was that of wanton destruction of cities, towns, or villages, or devastation not justified by military necessity under Article 3(b) of the ICTY Statute (Id. at 461). As a result, because of the military necessity waiver and the lack of a proportionality requirement, the destruction of the bridge as cultural property was excused under customary international law (and indirectly under the 1954 Hague Convention), whereas its destruction was not excused as a civilian object.
The Appeals Chamber reversed the convictions for destruction of the bridge. Destruction of the bridge offered a definite military advantage, so it was justified by military necessity. Because the bridge qualified as cultural property and because the Geneva Convention Protocols are subordinate to the 1954 Hague Convention, there was no proportionality requirement (Prosecutor v. Prlic et al, IT-04-74-A, Appeal Judgement, 29 November 2017, paras. 411–426, http://www.icty.org/x/cases/prlic/acjug/en/171129-judgement-vol-1.pdf; Hazan Reference Hazan2017). A dissenting judge, Fausto Pocar, pointed out that targeting of a military objective is not necessarily excused under military necessity unless the requirements of anticipated military advantage and proportionality are satisfied. Nonetheless, the effective result of the Appeals Chamber decision is that the protection afforded to civilian property is greater than that given to cultural property, and that the level of protection afforded to the bridge was determined by the lower standard of the Hague Convention rather than by the more exacting standard of the Geneva Conventions and Protocols.
The Mostar Bridge decision and the narrow provisions of the Rome Statute call into question the practical justification for a specific treaty regime that addresses protection of cultural property within IHL and for creating individual criminal responsibility for destruction of cultural property. This is a thorny question that must be determined in the future. Do we as a world society believe that the cultural heritage of humankind, theoretically protected under a specific treaty regime, deserves greater protection than what is afforded to civilian objects through general international humanitarian law embodied in the Geneva Conventions and Protocols? There are many disadvantages to a special treaty regime, as evidenced by the failure for decades to train militaries in the provisions of the 1954 Hague Convention and lagging ratifications in contrast to the extensive training, education, and consideration given to the Geneva Conventions. If no greater protection is afforded to cultural property than to civilian objects, then a separate treaty regime may not be justified. A better solution, however, would be to determine how cultural property can receive protection both through the international legal framework and in practice that is equal to, if not higher than, the protection given to civilian objects.
Indigenous Heritage: Insufficient Recognition of the Rights of Sub-state Entities
Three loci of authority are recognized in cultural heritage law: the international community, states, and sub-state groups and communities that include Indigenous and other ethnic and religious minorities. An area in which the international framework falls particularly short is the minimal cognizance of Indigenous cultural heritage and of the rights of sub-state groups. Sub-state groups may have a claim to cultural heritage objects, not through internationally recognized territorial sovereignty or through international conventions (as does a state) but rather through descendant, cultural, and traditional continuity and sometimes through a territorial claim, although not one typically based on internationally recognized sovereignty.
Much of the language of internationalism or the universal value of cultural heritage underpins or forms the justification for the international cultural heritage treaty regime (Starrenburg Reference Starrenburg, Strecker and Powderly2023:43). Cultural heritage is often described as a shared world, global, or universal heritage. The three earlier international conventions in this field—the 1954 Hague Convention, the 1970 UNESCO Convention, and the 1972 World Heritage Convention—all invoke the concept of a universal or shared heritage. The 1972 World Heritage Convention goes further in requiring that any cultural and natural heritage protected under the Convention be of “outstanding universal value” (Article 11(2). None of the texts of these three conventions mentions the rights of Indigenous or other sub-state groups, although more recent operational guidelines and other supplementary texts often do.
Intergovernmental organizations, primarily UNESCO, are responsible for the promulgation of culture-related conventions. Because the members of intergovernmental organizations are states, these organizations ultimately defer to the interests of their member states, which often oppose recognition of the rights of sub-state groups because such recognition may be perceived as a threat to or infringement on state sovereignty. Although described as a relative newcomer as a center of authority within the cultural heritage sphere, the state is today probably the center of the greatest authority. Sovereigns adopt and enforce the laws within their territories. Although international conventions and agreements impose obligations on a state, the international community, with a few exceptions, lacks the ability to enforce directly such obligations, at least within the cultural heritage field. More typically, international conventions defer to states to determine how they will implement international obligations. International standard-setting instruments and other forms of established norms influence state practice, but international law recognizes states as the center of authority, and its enforcement is largely dependent on the cooperation of states.
Although conventions are subject to sovereign decisions through the ratification and implementation processes, once a state ratifies a particular instrument, it may cede some of its sovereign authority. With respect to movable cultural objects, we see an example in the states that have adopted reciprocal import restrictions based on their implementation of the 1970 UNESCO Convention (Gerstenblith Reference Gerstenblith, Francioni and Vrdoljak2020:219; Peters Reference Peters, Carstens and Varner2020:377–379). These states allow a change in one country’s laws to become automatically embedded in another country’s laws. If one state party adds a category of cultural property that is subject to export restriction, that category becomes subject to import restriction in a second state party if the second country has adopted the reciprocal method of implementation. However, such examples of ceding of authority from one state to another or to the international community are relatively rare in the cultural heritage sphere.
Sovereignty is the basis for claims to cultural heritage and gives the state the right to regulate cultural heritage within its territory as a resource (Peters Reference Peters, Carstens and Varner2020:367). The authority of states over their territory has, to a considerable extent, well served the purpose of disrupting trafficking in cultural materials. The principle of state ownership of archaeological objects and the rights granted under treaty law have enabled the recovery of artifacts and other objects in destination market countries. States are often recognized as the interested party in international claims for restitution of cultural objects, particularly when such claims are dependent on treaty law or national ownership. When cultural objects are returned, they are therefore returned to a state rather than to a subgroup of the state, such as a local or regional governing body, a community, or an institution. To whom the state then gives the object depends on the domestic law and practice of the relevant national government. This may result in a mismatch between the community or institution to which the object is culturally linked and the state that is recognized as the center of authority under international law and by other states (see Carpenter Reference Carpenter2022).
In recent years, the role of local communities—which may have ongoing cultural, traditional, or descendant ties to the tangible heritage—has gained greater recognition, although many states remain hostile to any implicit recognition of the rights of a community in the international arena or inter-state relations. The role of the local community and the extent to which it is or can be recognized through international law vary. From a legal perspective, in most situations, communities are effectively excluded, particularly from international law. Francioni (Reference Francioni, Francioni and Gordley2013:18) has pointed out a few exceptions where the Inter-American Court of Human Rights has allowed cultural communities and Indigenous groups to assert communal rights to Indigenous lands and cultural sites. Allowing a community to operate at the international level outside of whatever role the state assigns or grants to the community may be seen as a challenge to state sovereignty. Such communities include those whose culture is not represented by the dominant culture of the state within which they exist or spans more than one modern state, or whose members are located—perhaps as refugees—entirely outside of the state where the community originated and where the community’s cultural heritage may be located. Both in the past and in the present, cultures and cultural communities were not and are not coterminous with national boundaries.
Recognition of the rights of Indigenous and other sub-state groups has increased, but such recognition is often relegated to the purview of “soft” law—that is, nonbinding and nonenforceable obligations. A prime example of this is the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which has now received significant acceptance even among settler-colonial states, but the extent to which the principles are implemented is left to the discretion of each state. The operational guidelines to the 1970 UNESCO Convention added “items of indigenous communities” to the definitional section for objects of ethnological interest. This definition acknowledges particular concerns in the trafficking of ethnological objects that have “special anthropological significance in festive or ritual customs and traditions” (UNESCO 2015:6–7). Items of spiritual importance and those that are of special interest or significance for continuity of culture, education, and traditions are to be listed by state parties when they draw up their lists to meet the definitional requirements of the convention in countering illegal trafficking in such items. The guidelines note that human remains and associated burial objects are often not considered to be “cultural property” and that returns of such items are therefore not effectuated under the 1970 Convention. Although this acknowledges that restitution may then require special legislation, it also allows for the possibility of returns directly to descendants or a descendant community, rather than to the state party, given that these returns would occur outside of the treaty regime.
Similarly, the draft model provisions for the 1970 Convention propose to recognize that the term “cultural property” includes that “recognized by indigenous peoples as forming part of their cultural heritage” (UNESCO unesco. 2023.:Provision 2). It recognizes the adoption of UNDRIP. Provision 4 addresses exclusively Indigenous cultural heritage and defines this as “property of cultural or spiritual interest to these [Indigenous] peoples.” Nonetheless, as with UNDRIP itself, the operatational guidelines are not binding, even (or especially) on states that have already ratified the Convention. These provisions are a significant step forward but may be described as too little and certainly too late.
As meager as the provisions to protect the rights of Indigenous groups are, there is even less recognition of the rights of other types of minority ethnic and religious communities. Their rights are protected only to the extent that the international framework that protects human rights incorporates a right to cultural heritage. Much progress has been made in recent years through the mandates of the UN Human Rights Council Special Rapporteurs in the field of cultural rights (Bennoune Reference Bennoune2016, Reference Bennoune2018; Gerstenblith Reference Gerstenblith2023:159–185). Nonetheless, the human rights instruments—such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights—tend to focus on the rights of individuals. To the extent that these can be extended to cultural heritage, the protected rights are primarily the rights of members of ethnic, religious, and linguistic minorities to (1) enjoy their culture in community, (2) access and engage in their culture, (3) practice their religion, (4) use their own language, and (5) develop and benefit from their cultural heritage, traditional knowledge, and traditional expressions.
The challenge for the future is how to achieve greater recognition for the rights of Indigenous and minority communities within a legal structure that is fundamentally based on state acceptance. Although most restitutions and particularly repatriations are done on a state-to-state basis under treaty law, when restitution is made outside of treaty law, it is feasible to return cultural objects to a descendant or local community. A returning state or institution could also insist that a receiving state pledge to return objects to the relevant cultural community, although this would almost certainly not be considered in the self-interest of the receiving state.
Contributing to Justice through Restitution: Colonialism and Imperialism
The final aspect of cultural heritage law that I see as a challenge to be resolved in the future is how to confront and deal with the large-scale appropriations of cultural objects as a result of armed conflict, imperialism, and colonialism, primarily during the nineteenth and first part of the twentieth centuries (see Gerstenblith Reference Gerstenblith2023). The passage of time poses a significant obstacle to the recovery of cultural objects taken from many regions of the world before these nascent countries had achieved statehood. This obstacle is due to basic principles embedded in the operation of the law.
The first is the principle of nonretroactivity: actions are judged by the law in effect at the time of the action and not the law in effect at the time a dispute arises (von Arnaud Reference von Arnaud2021:403; Vrdoljak Reference Vrdoljak2006:207–208). This principle applies equally to treaty obligations with respect to any act or fact that occurred before ratification, unless a different intention is established. Therefore, laws and treaties that were adopted after the end of the colonialist era do not apply to questions of restitution of cultural objects taken during colonialism. This principle of nonretroactivity fails to take account of the fact that as international law developed over the course of the nineteenth century, areas outside of Europe and North America, for the most part, were not viewed as constituting states. As a result, the formerly colonized regions in particular were not beneficiaries of the developing international legal rules that prohibited expropriation of cultural objects (Vrdoljak Reference Vrdoljak2006:46–67). The principle of nonretroactivity therefore projects a past inherently discriminatory system of international law into the present.
The second time-based impediment is that a wronged party has a limited amount of time in which to bring a claim. The bases for these restraints are statutes of limitation, the doctrine of laches, and the doctrine of prescription. Although many jurisdictions, especially in the United States, have grafted rules onto the specific statutes to allow an extended period of time to recover cultural objects (Gerstenblith Reference Gerstenblith, Hufnagel and Chappell2019:271–278), so far, none of these extended times has been interpreted to reach back to the nineteenth century. Other impediments are practical ones, such as the limits on the ability to deaccession objects and human remains from European museums, especially in Great Britain and France. Yet another obstacle is the imposition of costs on nations to litigate their claims in the courts of the countries that currently hold these objects and are not likely to be overly amenable to such claims of restitution.
Nonetheless, solutions to these obstacles to recovery claims can be found when the political will is present. Although none of these mechanisms is perfect, and some are indeed seriously flawed, we can see such political will in action through enactment in the United States of the Native American Graves Protection and Repatriation Act (NAGPRA) and the Holocaust Expropriated Art Recovery Act (HEAR Act). Adopted pursuant to the Washington Conference principles, the HEAR Act preempts state statutes of limitation in cases involving recovery of cultural objects taken during the Holocaust, but it failed to preempt the equitable defense of laches. As a result, the outcome of many of these cases is the same; only the reason for which the claim is barred is different. Avoidance of the nonretroactivity problem is achieved in NAGPRA by tying Congress’s authority to legislate repatriation to the continuing provision of federal funding.
In both Great Britain and France, the respective legislatures have made significant strides in removing the prohibition on deaccessioning but only in specifically defined situations. In Great Britain, this bar was removed for human remains through amendments to the Human Tissue Act in 2004 (Human Tissue Act 2004 c 30, s 47) and for recovery of Holocaust-looted art in 2009, which was extended for an additional 10 years in 2019 (Holocaust Return of Cultural Objects, formerly known as Holocaust [Stolen Art] Restitution Act 2009:ch. 16). Two stages of legislative reform have been adopted in France addressing Holocaust-looted art and human remains. The third stage that is intended to address cultural objects taken during colonialism has not yet been enacted. However, these legislative changes only permit deaccessioning for the purpose of restitution; they do not require restitution or establish guidelines for doing so.
This discussion of both the limits and the removals of those bars illustrates that the determination of what categories of cultural objects may be recovered is a product of political will. The national legislature of any country can remove time-based bars and limits on deaccessioning once the political will, typically based on public opinion, is there to force these changes. Although lawyers and judges can change the interpretation of the law, most often through persistent and creative litigation, it is the responsibility of all in the cultural heritage community with a concern for righting the injustices of the past to take up the task of persuading the public and therefore our elected leaders that this should be done.
Conclusion
As I look back over the past 40 years, I see much positive growth, development, and change in cultural heritage law. What comes with the maturation of the field is, however, also a splintering of the field into disparate subspecializations: recovery of stolen fine art, protection of archaeological heritage, preservation of cultural heritage during armed conflict, the rights of Indigenous groups to their cultural heritage, and the return of cultural objects taken during colonialism and imperialism. Even as these branches become separate subfields with their own specializations and distinctive legal and other challenges, we must remember that they come from the same roots. In taking stock of where we have been and where we want the field to go in the future, future cultural heritage practitioners will need to remember to engage in cross-pollination among these branches. As we specialize, we must still learn from each other, because at the core of all these subspecialtiesare concerns with both actualization of cultural heritage for disparate groups and the seeking of justice through legitimation of the claims of different groups and individuals to their cultural heritage.
This discussion of the present state of international cultural heritage law illustrates how much progress has been made over the past several decades and the debt that we owe to past activist cultural heritage scholars, lawyers, and practitioners. These four areas of cultural heritage law illustrate the persistent deficiencies and problems that have not yet been solved. Although not all future problems can be anticipated, at the very least, we need to recognize the problems that exist today and determine what is needed to resolve them in the future. This analysis also gives some indication of how the law may develop to assist in this resolution. This discussion sets out the challenge to the next generation of activist cultural heritage scholars, lawyers, and practitioners. The hope is that they will take up that challenge and continue to grapple with these issues with the goal of preserving cultural heritage for the benefit of present and future communities and generations.
Acknowledgments
I would like to thank Dr. Morag Kersel for her dedication to the preservation of the archaeological heritage and for her constant support of my work. I would also like to thank the other authors in this issue, both for their contributions to the field of cultural heritage and for the time they took to write for this issue.
Funding Statement
This research received no specific grant funding from any funding agency or from commercial or not-for-profit sectors.
Data Availability Statement
No original data are presented in this article.
Competing Interests Statement
The author declares none.
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